97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB1868

 

Introduced , by Rep. Frank J. Mautino

 

SYNOPSIS AS INTRODUCED:
 
New Act
30 ILCS 105/5.786 new

    Creates the Wind Energy Facilities Deconstruction Act. Requires the owner of a wind energy generation facility to deposit, with the Department of Agriculture, an irrevocable letter of credit and to maintain that letter until the wind energy generation facility has been subjected to deconstruction. Requires each letter of credit to list the Director of Agriculture as the beneficiary. Provides that if a claimant is able to establish that an abandonment has occurred, but that a deconstruction has not occurred within a specified period of time, then the Department shall request payment from the issuer of the letter of credit, deposit the payment in the Wind Energy Deconstruction Fund Trust Account, enter into a deconstruction agreement, and spend moneys in the Account to have the deconstruction performed. Provides that a claimant desiring to make a claim on the Fund shall file with the Department a complaint containing certain elements. Requires the Department to levy an annual fee on commercial wind energy owners that are conducting wind energy generation activities in the State. Requires those fees to be deposited into the Commercial Wind Energy Operations Fund, for use by the Department to cover certain administrative expenses. Amends the State Finance Act to create the Commercial Wind Energy Operations Fund, as a special fund in the State treasury. Effective July 1, 2011.


LRB097 08479 ASK 48606 b

FISCAL NOTE ACT MAY APPLY

 

 

A BILL FOR

 

HB1868LRB097 08479 ASK 48606 b

1    AN ACT concerning wind energy facilities.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 1. Short title. This Act may be cited as the Wind
5Energy Facilities Deconstruction Act.
 
6    Section 5. Purposes. The commercial wind energy facilities
7constructed throughout this State are usually placed, by use of
8options, licenses, easements, and leases, on land typically
9used for agricultural purposes and are owned by persons or
10entities other than the commercial wind energy developers that
11own the turbines and related facilities and equipment. Because
12deconstruction of these facilities would be costly for
13landowners who have granted one of these options, licenses, or
14easements or entered into one of these leases, it is deemed
15desirable to provide a means to pay for the deconstruction of
16these facilities in the event that the commercial wind energy
17company fails to do so in a timely manner.
 
18    Section 10. Definitions. As used in this Act:
19    "Abandonment" means (i) the failure, for a period of 12
20consecutive months, of the commercial wind energy company to
21operate a wind turbine or related facilities for the purpose
22for which it was designed and installed or (ii) the failure,

 

 

HB1868- 2 -LRB097 08479 ASK 48606 b

1for a period of 6 consecutive months, of the commercial wind
2energy company to pay the landowner moneys owed him or her in
3accordance with an underlying agreement.
4    "Administrative decision" has the meaning ascribed to that
5term in Section 3-101 of the Code of Civil Procedure.
6    "Agricultural purposes" means the production, on a
7continuous basis for the preceding 10 years, of agricultural
8crops, livestock, or both, including, but not limited to,
9horticultural, viticultural, and aquacultural production.
10    "Claimant" means a landowner seeking to have a
11deconstruction of wind energy facilities paid for from the Wind
12Energy Deconstruction Fund Trust Account and carried out by the
13Department under a deconstruction agreement.
14    "Commercial Wind Energy Operations Fund" means a special
15fund in the State treasury, containing moneys paid to the
16Department by reason of the commercial wind energy operators'
17fees, which shall be used by the Department solely for the
18purpose of defraying and reimbursing administrative and other
19costs and expenses incurred by the Department in fulfilling its
20duties under this Act.
21    "Commercial wind energy operator" means a private
22commercial enterprise that owns or operates a wind energy
23conversion facility of equal to or greater than 500 kilowatts
24in total nameplate generating capacity.
25    "Commercial wind energy operators' fees" means those
26moneys paid to the Department by commercial wind energy

 

 

HB1868- 3 -LRB097 08479 ASK 48606 b

1operators in accordance with this Act.
2    "Deconstruction" means the removal of a wind energy
3generation facility from the property of a landowner and the
4restoration of that property to the condition in which it
5existed immediately before the construction of the wind energy
6generation facility, including, but not limited to, the
7restoration of the soil to the type that it was before
8construction and the restoration of the topography of the
9property to its condition before construction; provided,
10however, that foundations, pads, electrical lines, and any
11other underground facilities must be removed to a depth of 5
12feet below the surface of the ground.
13    "Deconstruction agreement" means a written agreement
14between the Department and another party whereby the other
15party agrees to perform deconstruction of a wind energy
16facility in accordance with the provisions of this Act.
17    "Department" means the Illinois Department of Agriculture.
18    "Director" means the Director of Agriculture or his or her
19designee.
20    "Landowner" means any person with an ownership interest in
21property (i) that is used for agricultural purposes and (ii)
22that is the subject of an underlying agreement.
23    "Letter of credit" means a promise by an issuing bank or
24other financial institution to pay moneys to the Department in
25the event that the commercial wind energy company applicant for
26the letter of credit fails to act in accordance with the

 

 

HB1868- 4 -LRB097 08479 ASK 48606 b

1requirements of this Act relative to the timely deconstruction
2of wind energy facilities.
3    "Person" means an individual or entity, including, but not
4limited to, a sole proprietorship, a partnership, a
5corporation, a cooperative, an association, a limited
6liability company, an estate, a trust, or a governmental
7agency.
8    "Underlying agreement" means the written or verbal
9arrangement with a landowner, including, but not limited to, an
10easement, option, lease, or license, under the terms of which
11another person has constructed, constructs, or intends to
12construct a commercial wind energy generation facility on the
13property of the landowner.
14    "Wind Energy Deconstruction Fund Trust Account" means a
15trust account established by the Director that is used for the
16receipt and disbursement of moneys paid in accordance with the
17provisions of this Act to the Department by the issuers of
18letters of credit.
19    "Wind energy generation facility" means all property of any
20nature whatsoever comprising an operation designed to harness
21wind energy and create electricity therefrom, including, but
22not limited to, turbines, towers, roadways, concrete
23foundations, transmission lines, and poles, all situated on,
24under, or over the property of a landowner.
25    "Wind turbine" means each foundation, tower, blade, and
26propeller housing, designed for wind energy generation.
 

 

 

HB1868- 5 -LRB097 08479 ASK 48606 b

1    Section 15. Department oversight.
2    (a) The Director has all of the powers necessary and proper
3to fully and effectively execute the provisions of this Act,
4has the general duty to implement this Act, and may take any
5action that may be reasonable or appropriate to enforce this
6Act and rules adopted under the authority of this Act.
7    (b) The Department shall adopt rules that are necessary and
8appropriate for the implementation and administration of this
9Act.
 
10    Section 20. Applicability of the Illinois Administrative
11Procedure Act; judicial review.
12    (a) The Illinois Administrative Procedure Act applies to
13this Act.
14    (b) Final administrative decisions of the Department are
15subject to judicial review under Article III of the Code of
16Civil Procedure and its rules. An action to review a final
17administrative decision under this Act may be commenced in the
18Circuit Court of any county in which any part of the
19transaction that gave rise to the claim and that was the
20subject of the proceedings before the Department occurred.
 
21    Section 25. Deposit of letters of credit.
22    (a) Every commercial wind energy operator that is the owner
23of a wind energy generation facility located on land owned in

 

 

HB1868- 6 -LRB097 08479 ASK 48606 b

1whole or part by another person or entity shall deposit with
2the Department an irrevocable letter of credit in an amount to
3be determined by the Department, and shall keep such a letter
4of credit in full force and effect until all turbines and
5related wind energy generation facilities have been subjected
6to deconstruction, as defined in this Act.
7    (b) In determining the appropriate amount of a letter of
8credit, which amount must cover deconstruction costs, the
9Department shall take into account, among other things, the
10number of wind turbines and related wind energy generation
11facilities involved, the original construction cost of the wind
12energy generation facilities, the size and capacity of the wind
13turbines, the construction method and techniques for the
14turbines and other wind energy generation facilities, and the
15amount of salvage value, if any, that might be available to the
16Department upon deconstruction.
17    (c) For wind energy generation facilities already
18constructed or under construction on the effective date of this
19Act, the commercial wind energy owners of those facilities
20shall, within 60 days after the effective date of this Act,
21report to the Department any information reasonably required by
22the Department to establish the cost and value of those
23facilities, including, but not limited to, the number of wind
24turbines, the site plans of the wind energy generation
25facilities, the size and capacity of those facilities, and the
26original construction costs of those facilities. Within 90 days

 

 

HB1868- 7 -LRB097 08479 ASK 48606 b

1after receipt by the Department of all required information,
2the Department must inform these owners of the required amount
3of the letter of credit, listing as the beneficiary "The
4Director of Agriculture, as Trustee", with those moneys being
5payable to the Department to cover deconstruction costs, all in
6accordance with this Act, and indicating that the owner must
7deposit the letter of credit with the Department. Within 15
8days after being informed, the owner must deposit the letter of
9credit with the Department.
10    (d) For wind energy generation facilities constructed
11after the effective date of this Act, the commercial wind
12energy owners shall, before beginning construction of those
13facilities, provide to the Department the types of information
14required under subdivision (c) of this Section, and the
15Department shall have 90 days after receipt of that information
16to inform the owner of the required amount of the letter of
17credit, listing as the beneficiary "The Director of
18Agriculture, as Trustee", with those moneys being payable to
19the Department for deconstruction, all in accordance with this
20Act. Within 15 days after being informed, the owner must
21deposit the letter of credit with the Department.
22    (e) Each letter of credit shall list as the beneficiary
23"The Director of Agriculture, as Trustee" and shall, either in
24the body of that document or in the attached and incorporated
25documentation, provide satisfactory evidence to the Department
26that the undertaking of the issuer of the letter of credit for

 

 

HB1868- 8 -LRB097 08479 ASK 48606 b

1payment on the letter would be fully in accordance with the
2provisions of this Act.
3    All issuers of letters of credits shall be banks or other
4financial institutions deemed financially satisfactory and
5reputable by the Department.
6    (f) It shall be the responsibility of all parties to an
7underlying agreement to report the existence and specific
8provisions of such an underlying agreement to the Department as
9soon as reasonably possible after the date of the underlying
10agreement.
 
11    Section 30. Abandonment. Upon an administrative finding in
12a hearing held by the Department that the circumstances of an
13abandonment have been proven by a claimant and that a
14deconstruction of the wind energy generation facilities in
15question has not been completed satisfactorily after a period
16of at least 8 months after the date of abandonment, the
17Director shall do the following:
18        (1) request payments from the issuer or issuers of the
19    letter of credit for the purpose of paying the costs of
20    deconstruction;
21        (2) deposit payments received under item (1) of this
22    Section in the Wind Energy Deconstruction Fund Trust
23    Account, in accordance with this Act;
24        (3) enter into the appropriate deconstruction
25    agreement; and

 

 

HB1868- 9 -LRB097 08479 ASK 48606 b

1        (4) disburse the moneys in the Wind Energy
2    Deconstruction Fund Trust Account for the deconstruction,
3    in accordance with this Act.
 
4    Section 35. Claims.
5    (a) A claimant desiring to make a claim on the Wind Energy
6Deconstruction Fund Trust Account shall file, on forms supplied
7by the Department, a complaint that shall contain at least the
8following:
9        (1) the name and address of the claimant as well as
10    further information establishing the fact that the
11    claimant is a landowner as defined in this Act;
12        (2) the name and address of the owner of the wind
13    energy generation facility in question;
14        (3) the location of the commercial wind energy
15    generation facility in question;
16        (4) a detailed and comprehensive statement of the
17    circumstances indicating the time and existence of the
18    abandonment of the commercial wind energy generation
19    facility in question;
20        (5) a reasonably verifiable showing that
21    deconstruction of the facility has not been carried to a
22    satisfactory conclusion with 8 months after the date of the
23    abandonment;
24        (6) a request that the funds necessary to perform the
25    deconstruction in a satisfactory manner be sought by the

 

 

HB1868- 10 -LRB097 08479 ASK 48606 b

1    Department from the issuer or issuers of the letters of
2    credit in the Wind Energy Deconstruction Fund Trust Account
3    attributable to the commercial wind energy generation
4    company which has abandoned the facility or facilities;
5        (7) a request that the Department carry out the
6    deconstruction, in accordance with the definition of that
7    term in Section 10 of this Act;
8        (8) copies of the underlying agreement; and
9        (9) any other documentation reasonably required by the
10    Department.
11    (b) The Department shall hold a hearing within 30 days
12after it receives a complaint that meets the requirements of
13subsection (a), and it shall render a decision as to the
14validity of the claimant's complaint within 30 days after the
15conclusion of that hearing. In the event of a finding that the
16complaint is valid, then, within 30 days, the Department shall
17obtain at least 2 bids from contractors to carry out the
18specific deconstruction. One bidder must be chosen by the
19Department within the 60 days after the finding is made, and
20the Department, within 60 days after the selection of the
21bidder, must enter into a deconstruction agreement with that
22bidder for the deconstruction, which must be accomplished
23within 6 months after the execution of the deconstruction
24agreement with the bidder.
25    (c) The Department shall monitor the progress of the
26deconstruction and provide the necessary supervisory oversight

 

 

HB1868- 11 -LRB097 08479 ASK 48606 b

1to ensure that the deconstruction is accomplished in accordance
2with the deconstruction agreement and the provisions of this
3Act.
4    (d) The Department may draw upon only irrevocable letters
5of credit issued by the commercial wind energy generation
6company that has abandoned the wind energy facility that is the
7subject of the claim, complaint, and hearing. In addition, the
8Department may draw down the entire amount of the
9deconstruction cost from the issuer of the letter of credit at
10such time as the deconstruction agreement is signed by the
11Department.
12    (e) The proceeds from any letter of credit shall not be
13available for any purposes other than the payment of
14deconstruction costs under a deconstruction agreement.
 
15    Section 40. Commercial wind energy operators' fees;
16Commercial Wind Energy Operations Fund.
17    (a) The Department shall levy an annual fee on commercial
18wind energy owners that are conducting wind energy generation
19activities in this State. This fee shall be established by
20rule, but shall be adequate to reimburse the Department for
21costs and expenses of an administrative nature or otherwise
22that are incurred or borne by the Department in fulfillment of
23its obligations and duties under this Act.
24    (b) By January 15th of each calendar year, the Department
25shall mail a notice of the fee to each commercial wind energy

 

 

HB1868- 12 -LRB097 08479 ASK 48606 b

1owner conducting wind energy operations in this State. The
2amounts due from each wind energy owner shall be due by the
3next February 15th.
4    (c) The Commercial Wind Energy Operations Fund is created
5as a special fund in the State treasury. The Department must
6deposit the commercial wind energy operators' fees that it
7collects into the Fund and may draw upon the Fund to pay for
8administrative costs and other expenses related to the
9enforcement of this Act as they are incurred.
10    The Commercial Wind Energy Operations Fund is not subject
11to sweeps, administrative charges or chargebacks, or any other
12fiscal or budgetary maneuver that would in any way transfer any
13amounts from the Fund into any other fund of the State.
 
14    Section 55. The State Finance Act is amended by adding
15Section 5.786 as follows:
 
16    (30 ILCS 105/5.786 new)
17    Sec. 5.786. The Commercial Wind Energy Operations Fund.
 
18    Section 99. Effective date. This Act takes effect July 1,
192011.